Can a suspended or disbarred Oregon lawyer be paid for work done before the discipline, and can the successor lawyer split a contingent fee with that lawyer?

Plain-English summary

Lawyer A is suspended or disbarred for reasons unrelated to client work, leaving several open hourly and contingent-fee matters that Lawyer B takes over. The opinion asks whether Lawyer A may be paid for work done before the discipline took effect, and whether Lawyer B may share fees with Lawyer A in the contingent-fee case.

On the first question the opinion concludes yes, qualified. Under Oregon RPC 1.5(a), which bars an illegal or clearly excessive fee, the mere fact of suspension or disbarment does not make collecting a fee a violation, and it is proper for Lawyer A to seek an ethically appropriate fee for past work.

On the second question the opinion concludes yes, qualified. It applies RPC 1.5(d) (division of fees between lawyers not in the same firm) and RPC 5.4(a) (no sharing of legal fees with a nonlawyer), and states that during the period of suspension or disbarment a disciplined lawyer is a nonlawyer within the meaning of RPC 5.4(a). So Lawyer B may not share any fee for Lawyer B's own work with Lawyer A, but there is no prohibition against Lawyer B forwarding the portion of a fee to which Lawyer A was entitled for work performed before the discipline.

In practice

The opinion holds that the line is between earned compensation and a prospective fee split. Per the opinion, the disciplined lawyer may collect an appropriate fee for pre-discipline work and the successor may forward that portion, but RPC 5.4(a) treats the suspended or disbarred lawyer as a nonlawyer, so the successor cannot share a fee for the successor's own post-discipline work.

Common questions

Q: Can a disbarred or suspended lawyer collect fees earned before the discipline?

A: Yes, qualified. The opinion concludes that, under RPC 1.5(a), suspension or disbarment alone does not bar collecting an ethically appropriate fee for past work.

Q: Can the successor lawyer split a contingent fee with the disciplined lawyer?

A: Only the earned portion. The opinion concludes the successor may forward the portion attributable to the disciplined lawyer's pre-discipline work, but may not share a fee for the successor's own work, because RPC 5.4(a) treats the disciplined lawyer as a nonlawyer.

Q: Is a suspended lawyer a "nonlawyer" for fee-sharing purposes?

A: Yes. The opinion concludes that during suspension or disbarment the lawyer is a nonlawyer within the meaning of RPC 5.4(a).

Background and rules framework

The opinion interprets Oregon RPC 1.5(a) (no illegal or clearly excessive fee), RPC 1.5(d) (division of fees between lawyers not in the same firm, requiring informed consent and a non-excessive total fee), and RPC 5.4(a) (no sharing of legal fees with a nonlawyer). These track Model Rules 1.5 and 5.4.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.5(a), 1.5(d) / Model Rule 1.5 (fees; division of fees)
• Oregon RPC 5.4(a) / Model Rule 5.4 (sharing legal fees with a nonlawyer)

Cases:

• Parquit Corp. v. Ross, 273 Or 900, 543 P2d 1070 (1975)
• In re Griffith, 304 Or 575, 748 P2d 86 (1987)
• State ex rel. Oregon State Bar v. Lenske, 284 Or 23, 584 P2d 759 (1978)

Other opinions cited:

• OSB Formal Op. 2005-24: employing and compensating suspended and disbarred lawyers

See also

• OSB Ethics Op. 2005-24: Employing Suspended or Disbarred Lawyers
• OSB Ethics Op. 2005-15: Contingent Fees in Installments

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-25.pdf